Sexual Offences and their elements

Question 1

What type of crime is Rape?
Where is it found?

Answer 1

A statutory crime
s.1(1) SOA 2003

Question 2

How serious is rape?
What does this mean?

out of the 4 we study

Answer 2

The most serious
You always start with the most serious (if applicable)
Always convict most serious, even if others apply

Question 3

Where are any clarifications found for rape (3)
What are they on?

Answer 3

79(3) -> ‘penis’ can be any body parts that have been surgically added
s.79(9) -> vagina includes vulva for legal purposes
s.79 (2) -> penetration is a continuing act

Question 4

Which case adds to the clarification s.79(2)?

Answer 4

R(F) v DPP [2013]

Question 5

What is the actus reus and mens rea of rape?

Answer 5

AR -> penetrating …
MR -> ‘intentional’ penetration & no reasonable belief as to consent

Question 6

Circumstance element for rape?
Consequence element?

Answer 6

Absence of consent
None

Question 7

What type of crime is Assault by penetration?
Where is it found?

Answer 7

statutory
s.2(1) SOA

Question 8

Any clarifications for assault by penetration? (2)

Answer 8

AR doesn’t involve mouth
‘a part of his body’ can inlcude penis, but you would go for the more serious offence

Question 9

Actus reus and mens rea of Assault by penetration

Answer 9

AR -> penetrating …
MR -> ‘intentional’ penetration, no reasonable belief as to consent

Question 10

Circumstance element for assault by penetration?
Consequence element?

Answer 10

Absence of consent & penetration needs to be sexual
None

Question 11

What type of crime is sexual assault?
Where is it found?

Answer 11

statutory offence
s.3(1)

Question 12

Any clarifications for sexual assault (3)
Any case law? (3)

Answer 12

s.79(8) -> clarifies touching -> R v H [2005]
s.78 -> sexual
s.78 -> reasonable -> objective standard -> Attorney General’s Reference (No. 1 of 2020) [2020] & R v Ciccarrelli [2011]

Question 13

Actus reus and mens rea for sexual assault

Answer 13

AR -> conduct element - touching
MR -> ‘intentional’ touching, absence of reasonable belief

Question 14

Circumstance element for sexual assault
Consequence element?

Answer 14

touching has to be sexual, no consent
None

Question 15

Which case provides a richer definition of touching under s.78?
Why?

Answer 15

R v Abdulahi [2022]
CoA argued that manner of conduct is what is important

Question 16

What are the views of Simester and Sullivan of s.78?
Which case has a response to this?

Answer 16

• argues that s.78(a) is very rarely applicable
• but s.78(b) isn’t that helpful because anything could be sexual
  depending on what’s going on in people’s minds
  
  • but AG [2020] argues that you need to implement common sense

Question 17

What does s.6 Interpretation Act 1978 state?

Answer 17

• all Acts of Parliament with reference to the masculine gender also include the female gender and vice versa -> unless a contrary intention appears
• we’d include non-binary in this

Question 18

What type of offence is ‘Causing a person to engage in sexual activity without consent’?
Where is it found?
Is it new?

Answer 18

Statutory
s.4(1)
Yes, it didn’t exist pre-SOA

Question 19

What is the actus reus and mens rea of s.4(1)?

Answer 19

AR -> conduct element ‘ causing to engage …’
MR -> ‘intentionally’ causing, no reasonable belief as to consent

Question 20

Circumstance element for s.4(1)?
is mens rea required for all of these?

Answer 20

Sexual -> no MR required for this element
Absence of consent -> yes, MR required

Question 21

Why are there 2 levels of seriousness for s.4(1)?
Where are the levels clarified?

Answer 21

Technically 2 different offences -> Depends on whether it is penetrative or not
s.4(4) and s.4(5)

Question 22

What do you do if there is more than 1 defender?

Answer 22

Each individual defendant must be considered separately in relation to
each individual complaint